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Summary Judgment: Making the Motion (NY)

October 20, 2020 (24 min read)

By: Randi-Lynn Smallheer, Practical Guidance

This article is for attorneys making a motion for summary judgment in New York state court under Rule 3212 of the Civil Practice Law and Rules. It provides an overview of summary judgment and addresses the summary judgment standard, motion deadlines, types of cases for which summary judgment is and is not favored, what evidence to submit with the motion, the trial court's role on summary judgment, and special requirements in the Commercial Division of the New York Supreme Court.

Overview of Summary Judgment

Summary judgment enables a party to subject its adversary's claims or defenses to the scrutiny of the presiding judge, who may resolve some or all of the issues in the case. Properly utilized, summary judgment motions save significant time and expense by limiting the scope of the case or disposing of it entirely. But making a summary judgment motion is itself expensive and time consuming. Therefore, be sure you understand the motion standards and procedures this note discusses and carefully evaluate your likelihood of success on the motion before proceeding. For example, Context analytics reveal the following rates of summary judgment success in various New York counties:

Motion Decisions from New York Supreme Court, New York County’s Cases

Motion Decisions from New York Supreme Court, Queens County’s Cases

Motion Decisions from New York Supreme Court, Nassau County’s Cases

Motion Decisions from New York Supreme Court, Albany County’s Cases

Source: Context.1

Motion for Summary Judgment Outcomes—New York Supreme Court, New York, Queens, Nassau, and Albany Counties

In New York, summary judgment is governed by N.Y. C.P.L.R. § 3212, which allows a court to resolve some or all of the issues in a case before trial. Full summary judgment results in a final judgment in favor of the moving party, while partial summary judgment resolves some of the claims and issues in the case and leaves others to be decided at trial.

The Summary Judgment Standard

Any party may move for summary judgment in any action.2 A court will grant summary judgment if, upon review of the record, the moving party sufficiently establishes the cause of action or defense at issue to warrant judgment in its favor as a matter of law.3 The court will deny summary judgment if any party shows “facts sufficient to require a trial on any issue of fact” unless the case qualifies for immediate trial.4

Motions for summary judgment in New York state court follow a burden-shifting approach. First, the moving party must demonstrate that there is no triable issue of fact and that the party is entitled to judgment as a matter of law.5 Once the moving party satisfies its initial burden, the burden shifts to the party opposing summary judgment to submit evidence that raises the possibility of a factual issue and/or that the moving party is not entitled to judgment as a matter of law.6

As you prepare your motion papers, consider highlighting legal authority most frequently cited by your local court on a motion for summary judgment. For example, Context analytics show the following summary judgment citation patterns in the New York Supreme Court in New York County:

Motion for Summary Judgment Citation Patterns—New York Supreme Court, New York County and Queens Counties  

Source: Context.7

Source: Context.8

If the moving party fails to establish its initial burden, the court will not grant summary judgment, even if the opposing party does not contest the motion.9 When opposing a motion for summary judgment, however, you should never assume that the moving party has failed to meet its burden and should always submit a comprehensive opposition.

Due to the drastic nature of summary judgment, which deprives the parties of a trial on the merits, the court will deny the motion if there is bona fide doubt as to the existence of a triable issue.10

In determining what constitutes a triable issue of fact, the court must accept the allegations of the party opposing summary judgment as true.11 To be sufficient to deny summary judgment, the factual issues must be genuine and not speculative.12

The court will also deny summary judgment if a determination depends upon the credibility of evidence or upon a choice between several reasonable inferences the court could draw from extrinsic evidence.13

Note that while proof of damages is essentially an issue of fact, the court will not grant summary judgment merely because the plaintiff has difficulty proving them.14

Making Timely Application for Summary Judgment

Generally, summary judgment motions are submitted after all relevant discovery has been completed, but well in advance of trial. In New York, a party may move for summary judgment any time “after issue has been joined,” meaning after service of a responsive pleading.15

Courts can set a date—no earlier than 30 days after the note of issue is filed—by which summary judgment motions must be made.16 The note of issue places the case on the court's trial calendar. It is filed after the parties have completed discovery and the case is ready for trial.17

If the court sets a summary judgment deadline, it will likely be contained in the preliminary conference order or compliance conference order. You should also look at the judge's individual rules and other local rules for deadlines.18

If the court does not set a deadline, summary judgment motions must be made no later than 120 days after a party files the note of issue, unless good cause is shown to extend the deadline.19

In New York, a summary judgment motion is made when the notice of motion or order to show cause is served on the other parties and not when the motion is filed.20

The parties may stipulate to a different procedure than set forth above (e.g., requiring the parties to file summary judgment motions no more than 60 days after the note of issue is filed), but be careful to strictly adhere to these procedures to avoid filing an untimely motion.21

N.Y. C.P.L.R. § 2214 sets the motion timetable for all motions, including summary judgment motions. The statute sets forth two separate schedules:

  • The 16-7-1 rule. If the moving party wants to file a reply brief, it must serve the initial motion papers at least 16 days before the date the moving party selects for the court to hear the motion (i.e., the return date). Provided that the notice of motion demands it, the opposing party then must serve its answering papers at least seven days before the return date. The moving party must serve its reply papers at least one day before the return date.
  • The 8-2 rule. If the moving party does not wish to file a reply brief, it must serve the motion papers at least eight days before the return date. The opposing party must then serve its answering papers at least two days before the return date.22

Good Cause

As stated above, a court may grant a party leave to make a motion for summary judgment more than 120 days after the note of issue was filed upon “good cause shown.”23 To find good cause, there must be a satisfactory reason for delay.24 For example, courts have found good cause in the following instances:

  • New York State Unified Court System's public website incorrectly stated that the note of issue was filed five days after it was in fact filed; the movant reasonably relied upon the website, and the movant had no reason to believe that information contained on the website was not correct.25
  • The defendants were never served with the note of issue and did not learn of it until after the period to make the motion had expired.26
  • The action against the third-party defendant who filed the motion for summary judgment was not commenced until well after the note of issue was filed.27
  • The defendant served the motion two days late because of the attorney's and his secretary's family emergencies on the last day to serve the motion.28

Courts have held that the following reasons do not alone constitute good cause for a late motion:

  • The parties were engaged in settlement talks.29
  • The defendants switched counsel.30
  • There were perfunctory law office failures.31

The fact that the summary judgment motion has substantive merit does not amount to good cause to make the motion after the statutorily prescribed 120-day period.32 Courts are divided on whether that rule applies to cases where the court shortens the time to make the motion.33

Note that at least one court has found that parties may stipulate to waive their right to file an untimely motion upon good cause.34

In practice, it is best to seek leave to make a late motion before the court- or statutorily-imposed deadline passes and not in the late-filed papers themselves. This way, you do not face the possibility that the court will not find good cause for your late filing and deny the motion outright. However, when making or opposing an untimely motion, review the cases discussed in this section and assess whether good cause exists for the infraction.

Unfinished Discovery

Another common justification for making an untimely motion is that more discovery is needed before the court can rule on summary judgment. This situation often occurs where a party files the note of issue—signaling the end of discovery—before the parties have actually completed all discovery. The parties have several options to deal with a prematurely filed note of issue, such as striking the note of issue under 22 N.Y.C.R.R. § 202.21(e) or obtaining the court's permission to proceed with discovery even after the note of issue is filed.

If the court refuses to strike the note of issue and there is insufficient time to complete discovery and prepare a summary judgment motion before the deadline, seek leave from the court to extend the time to file summary judgment motions until a specified amount of time after discovery has concluded. Generally, courts find good cause for belated motions where the outstanding discovery is relevant or essential to the issues to be resolved on the motion.35

If the court refuses to extend the time to file motions for summary judgment, the cautious approach is to file a timely motion with the discovery available.

Be aware that if discovery closes before the opposing party has obtained sufficient evidence for its answering papers, it can ask the court to utilize its authority under N.Y. C.P.L.R. § 3212(f) to deny summary judgment without prejudice to renew the briefing after it has obtained the necessary discovery. Courts regularly exercise this prerogative when necessary information is in the hands of the moving party (or a third party).36

Defenses Available

A defendant moving for summary judgment has the regular panoply of defenses available to it, save that it may not bring affirmative defenses it failed to raise in its responsive pleading.37 As a result, it is imperative to raise in your answer to the complaint all defenses that you anticipate in good faith that you might raise at summary judgment.

Types of Cases Where Summary Judgment Is or Is Not Favored

New York does not place any restrictions on cases in which a party may move for summary judgment, with the sole exception that a court may not grant summary judgment in favor of a non-moving party in a matrimonial action.38 However, as discussed below, certain types of cases are ill-suited for summary judgment due to their fact-specific nature.

Negligence Cases

Negligence cases are one example of actions that turn on factual determinations, making courts hesitant to grant summary judgment. In such an action, determining whether a party was negligent requires the court to assess whether the defendant acted reasonably under the circumstances, a mixed question of fact and law that courts often opt to leave to a jury to work out at trial.39

While not unheard of, it is particularly difficult for plaintiffs to succeed on summary judgment in negligence cases because they must demonstrate all of the fact-specific factors in the affirmative. Defendants moving for summary judgment have an easier task insofar as they need only demonstrate that the plaintiff cannot meet its burden with respect to at least one of the factors necessary for negligence.

Contract Cases

Contract disputes also do not readily lend themselves to resolution upon summary judgment. Deciding a contract action often requires the court to assess the intent of the parties regarding the terms of the agreement, a question of fact appropriate for a jury to determine. However, when the dispute depends solely on contract interpretation without reference to extrinsic or parol evidence, a court may grant summary judgment on the question of law.40

Thus, in negligence and contract cases (as in all cases), be sure to consider the elements for each cause of action and whether they are too fact-intensive to be appropriate for summary judgment.

Drafting, Serving, and Filing the Motion: Procedural Requirements

You can find technical requirements for drafting, serving, and filing motions in New York state courts in N.Y. C.P.L.R §§ 2101–2103 and the Uniform Rules for N.Y. State Trial Courts. The procedural requirements for motion practice generally in New York state court apply to summary judgment motions. However, be sure to check local rules or rules of individual judges as well, as they may have additional procedural requirements for summary judgment motions or general motion practice.41

Submitting Appropriate Proof in Support of a Summary Judgment Motion

To prevail on summary judgment, you must submit admissible evidence supporting your motion that is sufficient to merit judgment as a matter of law.42 The evidence may take any of several forms. The motion may be supported by:

  • Affidavits
  • A copy of the pleadings
  • Other available proof, such as depositions and written admissions43

Although the statute does not explicitly authorize them, you should also submit any relevant responses to written interrogatories. You may make supplemental submissions as well, but do so sparingly.44

Affidavits and Affirmations

Parties often submit evidence in the form of affidavits, which generally take three forms. One type of affidavit is a witness statement that the moving party uses as evidence to support its summary judgment motion. Be sure these affidavits are:

  • Based on personal knowledge
  • Truthful
  • Particular
  • Clear

Courts will disregard any affidavits that are conclusory or simply restate allegations in the complaint.45

A second type of affidavit contains a statement from an expert witness. These affidavits contain testimony pertaining to issues that require specialized knowledge in a particular field, such as medicine or forensics. Courts may not refuse to consider an affidavit from an expert witness supporting a summary judgment motion on the grounds that the parties did not conduct an expert exchange pursuant to N.Y. C.P.L.R. § 3101(d)(1)(i) prior to summary judgment.46

The third form of affidavits are actually affirmations that come from the attorneys representing the parties. Attorney affirmations should be used solely to introduce evidence into the record as exhibits to the affirmation, such as deposition transcripts and important documents.47 Because attorneys do not have personal knowledge of the underlying facts of the case, they cannot testify to these facts as would a witness.48 The attorney's affirmation also should not make legal arguments, which belong in the briefs or memoranda of law.49

Note that the court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine but feigned.50

Evidence Other than Affidavits and Affirmations

Use the pleadings and written admissions to your advantage. For example, if the complaint contains a statement that is damaging to the opposing party's claim, bring it to the court's attention in your briefing. The court may consider it a formal judicial admission upon which it can base its dismissal of the case.51

Similarly, written admissions can include records of stipulations made in open court.52 If the opposing party made a damaging statement on the record, submit it as evidence.

Do not submit hearsay or other inadmissible evidence in support of your motion.53 Also, do not rely on defective pleadings (i.e., complaints and answers) to win summary judgment, as you would on a motion to dismiss. Even if a complaint mischaracterizes a cause of action or is otherwise insufficient, the claim may still withstand summary judgment if the plaintiff's evidence on summary judgment supports the claim.54

Additionally, file and rely upon only the evidence that is necessary to support the motion for summary judgment. Burdening the courts with nonessential information is unwise and generally makes it easier for the opposition to identify disputed issues of fact.

Finally, note that unlike in New York federal courts, there is no requirement in the New York Supreme Court that the moving party include a statement of material facts in its papers unless the case is in the Commercial Division or local rules require it.

The Trial Court's Role on Summary Judgment

Once the parties' submissions are complete, the trial court judge has an array of options besides simply granting summary judgment in full and disposing of the case or denying summary judgment in full and allowing all claims to proceed to trial. This section discusses the various statutory powers granted to the trial court on summary judgment under New York law.

Grant Partial Summary Judgment

First, the court may order partial summary judgment on a subset of the claims or defenses at issue.55 Moreover, if a single cause of action is divisible into multiple elements, the court may grant summary judgment with respect to part of that individual claim.56 The court may either enter partial summary judgment immediately or hold the entry of summary judgment in abeyance pending the determination of any remaining cause of action.57

Search the Record and Find for the Non-moving Party

The court may also search the record and direct summary judgment in favor of the non-moving party, even if the non-moving party has not brought a cross-motion requesting such relief.58 However, the court may not order summary judgment on claims or issues that are not before it.59 Nor may the court grant summary judgment sua sponte in the absence of any motion at all by the parties.60 Nevertheless, the court's power in this regard is significant. Give it due consideration when assessing the risks of bringing a summary judgment motion that is less than meritorious.

Order an Immediate Trial

The trial court also has the power to order an immediate trial before a referee, the court, or a jury on certain factual issues that a party raises in its summary judgment motion.61 The court may order an immediate trial with respect to:

  • The amount or extent of damages, if that is the only triable issue of fact
  • In motions based on any of the grounds enumerated in Y. C.P.L.R. § 3211(a) or (b), any other issue of fact the motion raises when appropriate for the expeditious disposition of the controversy62

Establish Facts and Limit the Issues for Trial

If the motion for summary judgment does not dispose of the case, the court may ascertain which facts are undisputed or incontrovertible by examining the papers before it and, in its discretion, interrogating counsel.63 The court may then deem certain facts established without requiring a party to prove them with additional evidence at trial.64

Make Other Orders

Finally, the court has the sweeping, catch-all power to “make any order as may aid in the disposition of the action.”65 This prerogative is limited, however, by other restrictions on the court's powers.66

Res Judicata

The court's order granting summary judgment is a final determination on the merits of the claim or the entire case. Thus, it has res judicata and collateral estoppel effect. The court's denial of the motion as to certain claims and issues is not preclusive, however, as it simply means that there is some uncertainty regarding these matters.

For instance, if the court denies the summary judgment motion, but the moving party subsequently uncovers new evidence that was not available to it at the time of its original motion, the court should not deny the second motion on res judicata grounds.67 However, a court will generally deny summary judgment to a party that has previously lost on summary judgment if the moving party does not present new evidence or the new evidence was available (though not presented) in the original motion.68

Summary Judgment in the Commercial Division

Special requirements apply to summary judgment motions in cases assigned to the Commercial Division of the New York Supreme Court, which hears various enumerated claims—including breach of contract or fiduciary duty, fraud, misrepresentation, business torts, and other alleged violations arising from business dealings—that meet a certain monetary threshold.69

Specifically, the court in such cases may direct the moving party to annex a statement of material facts to the notice of motion. In some counties the statement of material facts is mandatory.70 The statement of material facts should be a separate and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.71 Each statement of material fact must be followed by a citation to the evidence that supports it.

The opposing party must respond with a correspondingly numbered paragraph responding to each of the moving party's numbered paragraphs and, if necessary, additional numbered paragraphs containing material facts and citations of its own.72 The court will deem each of the movant's material facts to be admitted unless the opposing party specifically controverts them in this manner.73

Randi-Lynn Smallheer is a Content Manager for the Practical Guidance Civil Litigation team. In this role, Randi-Lynn helped launch Civil Litigation’s New York jurisdictional content and currently focuses on expanding the practice area’s existing arbitration and federal and state litigation content. Randi-Lynn brings to LexisNexis 18 years of legal experience as a seasoned litigator in federal and state court working at various national and local law firms, including Proskauer Rose, LLP.

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1. Source: Context  Source: Context (New York County) (current as of 10/01/2020), Context (Queens County) (current as of 10/01/2020), Context (Nassau County) (current as of 10/01/2020), and Context (Albany County) (current as of 10/01/2020). For more information on Context, click here2. N.Y. C.P.L.R. § 3212(a)3. N.Y. C.P.L.R. § 3212(b)4. N.Y. C.P.L.R. § 3212(c)5. See Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851 (1985)6. See, e.g., Alvarez v. Prospect Hosp., 68 N.Y. 2d 320 (1986); Zuckerman v. New York, 49 N.Y.2d 557 (1980); Piccolo v. De Carlo, 456 N.Y.S.2d 171, 173 (3d Dep’t 1982)7. Source: Context  (New York County) (current as of 10/1/2020). For more information on Context, click here8. Context (Queens County) (current as of 10/1/2020) (click here for the latest analytics). To learn more about Context, click here9. Gallo v. Higgins Erections & Haulers, Inc., 357 N.Y.S.2d 152 (3d Dep't 1974)10. Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978)11. Rizk v. Cohen, 73 N.Y.2d 98, 103 (1989)12. Dougherty v. Kinard, 626 N.Y.S.2d 554, 555 (2d Dep't 1995)13. IBM Credit Fin. Corp. v. Mazda Motor Mfg. (USA) Corp., 542 N.Y.S.2d 649 (1st Dep't 1989)14. See, e.g., A.W. Fiur Co. v. Ataka & Co., 422 N.Y.S.2d 419 (1st Dep't 1979)15. N.Y. C.P.L.R. § 3212(a)16. Id. 17. See N.Y. C.P.L.R. § 340218. See, e.g., New York County Supreme Court, Civil Branch, Rules of the Justices19. N.Y. C.P.L.R. § 3212(a)20. N.Y. C.P.L.R. § 221121. See, e.g., Corchado v. City of New York, 883 N.Y.S.2d 33, 34 (1st Dep't 2009)22. N.Y. C.P.L.R. § 221423. N.Y. C.P.L.R. § 3212(a)24. Coneo v. Washington Heights Hellenic Orthodox Church, Inc., 822 N.Y.S.2d 443 (1st Dep't 2006)25. Adika v. Dramitinos, 904 N.Y.S.2d 461 (2d Dep't 2010)26. McFadden v. 530 Fifth Ave. RPS III Assoc., LP, 812 N.Y.S.2d 88 (1st Dep't 2006)27 Callegari v. Davis & Partners, LLC, 2011 N.Y. Misc. LEXIS 1150 (Sup. Ct. New York County Mar. 22, 2011)28. Stimson v. E.M. Cahill Company, Inc., 778 N.Y.S.2d 585 (4th Dep't 2004)29. See State Farm Fire & Cas. v. Parking Sys. Valet Serv., 849 N.Y.S.2d 891 (2d Dep't 2008)30. Breiding v. Giladi, 789 N.Y.S.2d 449, 449 (2d Dep't 2005)31. See Quinones v. Joan & Sanford I. Weill Med. Coll., 980 N.Y.S.2d 88 (1st Dep't 2014)32. Brill v. City of New York, 814 N.E.2d 431 (NY 2004)33. Compare Bouilland v. Angulo, 799 N.Y.S.2d 158 (Sup. Ct. New York Cty. 2004), with Hernandez v. 620 West 189th Limited Partnership, 792 N.Y.S.2d 822, 824 (Sup. Ct. New York Cty. 2005)34. See Bennett v. St. John's Home & St. John's Health Care Corp., 8 N.Y.S.3d 774, 775 (4th Dep't 2015)35. See, e.g., Courtview Owners Corp. v. Courtview Holding B.V., 978 N.Y.S.2d 859 (2d Dep't 2014)36. See, e.g., Salameh v. Yarkovski, 64 N.Y.S.3d 569 (2d Dep't 2017)37. See, e.g., Eschen Steel & Iron Works Co. v. John T. Brady & Co., 461 N.Y.S.2d 843, 844 (1st Dep't 1983)38. N.Y. C.P.L.R. § 3212(e)39. See, e.g., Hoey v. City of New York, 590 N.Y.S.2d 434 (1st Dep't 1992); see also Hain v. Jamison, 46 N.Y.S.3d 502 (2016) (noting that issues of proximate cause and foreseeability in negligence actions “are generally questions for the factfinder”). 40. See Mallad Constr. Corp. v. County Fed. Sav. & Loan Ass'n, 32 N.Y.2d 285, 293 (1973)41. See, e.g., New York County Supreme Court, Civil Branch, Rules of the Justices42. N.Y. C.P.L.R. § 3212(b)43. Id. 44. See Ostrov v. Rozbruch, 936 N.Y.S.2d 31, 35 (1st Dep't 2012) (“While such supplemental submissions may be appropriate in particular cases, they should be sparingly used and then only for a limited purpose.”). 45. See N.Y. C.P.L.R. § 3212(b); Vermette v. Kenworth Truck Co., 497 N.E.2d 680 (N.Y. 1986)46. N.Y. C.P.L.R. § 3212(b)47. See Simplex Grinnell, LP v. Ruby Weston Manor, 873 N.Y.S.2d 210 (2d Dep't 2009)48. Id49. In re Taylor, 37 N.Y.S.2d 675, 676 (2d Dep't 1942)50. Glick & Dolleck, Inc. v. Tri-Pac Exp. Corp., 22 N.Y.2d 439, 441 (1968)51. See Performance Comercial Importadora E Exportadora Ltda v. Sewa International Fashions Pvt. Ltd., 915 N.Y.S.2d 44, 45 (1st Dep't 2010)52. See N.Y. C.P.L.R. § 210453. Borough Hall-Oxford Tobacco Corp. v. Central Office Alarm Co., 313 N.Y.S.2d 431, 432 (2d Dep't 1970) (holding hearsay cannot support summary judgment). 54. See Alvord & Swift v. Stewart M. Muller Constr. Co., 46 N.Y.2d 276, 280-81 (1978)55. N.Y. C.P.L.R. § 3212(e)56. Id.; Amaducci v. Metro. Opera Ass'n, 304 N.Y.S.2d 322, 323-24 (1st Dep't 1969)57. N.Y. C.P.L.R. § 3212(e)58. N.Y. C.P.L.R. § 3212(b)59. See Dunham v. Hilco Constr. Company, 89 N.Y.2d 425, 429–30 (1996)60. Berle v. Buckley, 869 N.Y.S.2d 679, 681 (3d Dep't 2008)61. N.Y. C.P.L.R. § 3212(c)62. Id63. N.Y. C.P.L.R. § 3212(g)64. Id. 65. Id66. See, e.g., N.Y. C.P.L.R. § 3212(c) (limiting the issues on which the court may order an immediate trial). 67. See Green Harbour Homeowners Assn., Inc. v. Ermiger, 8 N.Y.S.3d 705, 707 (3d Dep't 2015)68. See Keating v. Town of Burke, 962 N.Y.S.2d 804, 805 (3d Dep't 2013); Ralston Purina v. Arthur G. McKee & Co., 572 N.Y.S.2d 125, 126 (4th Dep't 1991)69. See 22 N.Y.C.R.R. § 202.70(a)–(b)70. See, e.g., Kings County Supreme Court Uniform Civil Term Rules, Part I, Rule 15; 22 N.Y.C.R.R. 202.70(g), Rule 19-a.)71. 22 N.Y.C.R.R. § 202.70, Rule 19-a(a)72. 22 N.Y.C.R.R. § 202.70, Rule 19-a(b), (d)73. 22 N.Y.C.R.R. § 202.70, Rule 19-a(c).